analysisBy Thijs B. Bouwknegt
This Friday, Germain Katanga has the ambiguous honour of receiving the third ever judgement from the International Criminal Court (ICC).
It comes a decade after Joseph Kabila outsourced his backyard of crime to international prosecutors. The Democratic Republic of Congo (DRC) seemed to be the perfect case file for the newly established court that prosecutes genocidaires, war criminals and criminals against humanity. But the trials in The Hague show the opposite. Congo became the ICC's Pandora's Box.
"Africa has the shape of a gun, and Congo is its trigger." An ambitious French human rights lawyer cited Frantz Fanon, while striding through the crisp hallways of the ICC.
His chief, Luis Moreno Ocampo, had just announced the start of a criminal inquiry into human rights violations in Ituri. It was Wednesday, 23 June 2004; roughly one year after the Argentinean prosecutor took his oath in The Hague.
The troubled Congolese province had been on his radar ever since. Just like Iraq, Afghanistan and Colombia. But for the latest international justice experiment, Congo appeared to be a convenient and feasible pick.
In the year before Ocampo set up his Office of The Prosecutor (OTP), 499 'communications' had already been sent to PO Box 19519, the ICC's fictive address since 1 July 2002.
Only six complaints related to Ituri were deposited there, but nonetheless, the isolated region fitted the main selection criteria.
On or after July 2002, in a battle for control over the region between at least six militias, some 5,000 civilians were massacred, villages pillaged and women raped. The court's fiercest critics would not obstruct a judicial intervention in the Congolese 'bush' like they obviously would in Iraq.
There was no national resistance either. On the contrary. In March 2004, Joseph Kabila had eagerly accepted Ocampo's invitation to outsource the well-reported crimes to the war crimes prosecutor.
The Congolese President undoubtedly saw an open door through which he could send a handful of warlords to The Netherlands. Besides excluding the recalcitrant Iturians from power sharing, Kabila was sure Kinshasa would linger in impunity. He would merely assist the ICC - a tactic he copy-pasted from Uganda's President Yoweri Museveni.
July 2004. Kabila's strategy worked. Serge Brammertz - the then Belgian Deputy Prosecutor in charge of investigations - told the US embassy in Kinshasa that his probe ought not "derail" Congo's delicate peace process.
It would hence "focus on abuses committed by actors outside the transition, such as the Ituri armed groups." But Brammertz also raised concerns about the work terrain: the DRC was "difficult and complex [... ] for logistical and political reasons."
And indeed, throughout their first field mission to Bunia in September 2004, investigators heard gunshots in the regional capital. Bunians greeted them with suspicion, unsure what and who these foreigners were after. Roadblocks prevented them from leaving the city to visit crime scenes and potential witnesses.
Some four months later, on 10 January 2005, the Congolese army appointed a number of Iturian ex-combatants to serve as generals.
Former rivals Bosco Ntaganda and Germain Katanga were among those who received this 'promotion', to the disgust of late Human Rights Watch researcher and historian Alison Des Forces, who said "the government needs to take these warlords to court." She was surprised by the wave of arrests in late February of eight Iturian warlords, including Katanga.
The 24-year-old 'Simba' - lion in Kiswahili - was accused of the 2002 mass killing of an estimated 1200 Hema and Bira civilians in Nyakunde and ended up in prison in Kinshasa.
Just like Thomas Lubanga Dyilo, who was arrested for his purported part in the slaughter of nine Bangladeshi peacekeepers in February 2005. Both men faced charges including genocide and crimes against humanity, crimes falling under Ocampo's Rome Statute.
Ntaganda - who since April 2005 also faced a Congolese arrest warrant - fled to Rwanda. In his home country, he was out of reach of the Congolese military courts that were trying dozens of ex-fighters for atrocity crimes. Ocampo followed slowly, but not particularly surely.
Initially, ICC investigators spent their time tracking down 'Bosco' and lobbying for his arrest with the UN peacekeeping force MONUC. But there were substantial hurdles. Continuing violence. No permanent office. And the USA, an ICC opponent by heart at that time, restricted MONUC's assistance to a minimum.
While the security concerns dragged down the investigations, the lack of police experience affected its quality. Only two out of the twelve investigators had a police background, including Bernard Lavigne.
The team's leader testified that the others mainly included former NGO researchers, who were not up to the job. All foreigners, the enqueteurs were instructed to refrain from local contact with chiefs, priests or schoolteachers. It was to protect the identities of witnesses and informants, but it barred them from gaining useful 'field knowledge'.
More importantly, the team's immobility obstructed their core business: collecting information and impartially verifying prospective evidence to be used in an international court of law.
Instead, the Ituri investigation was outsourced. Intelligence was borrowed from the notes of MONUC police officers and NGO researchers who had previously documented human rights violations.
The very first witness was heard in The Hague "through an NGO", a modus operandi that was soon exported to Bunia. The prosecutor's bureau commissioned locals to liaise between investigators and potential witnesses.
These 'intermediaries' - as they were called - carried out the ICC's essential fact-finding mandate: selecting witnesses, recording their statements and corroborating the information.
This OTP methodology was soon criticised by observers as being "amateurish" and "mediocre." Human Rights Watch was concerned that the investigator's efforts would never lay bare the full scope of the atrocities in Ituri, confirms the organisation's senior Africa researcher Anneke van Woudenberg.
Based on its minimalistic, delegated and selective enquiry, Ocampo requested the ICC pre-trial chamber to issue two arrest warrants.
In January 2006 Ocampo accused Thomas Lubanga and Bosco Ntaganda of a what observers called a "marginal charge"; the war crimes of enlisting, conscripting and using children younger than fifteen within the ranks of the Patriotic Force for the Liberation of the Congo (FPLC), the armed wing of their Union of Congolese Patriots (UPC) political party.
The pre-trial chamber - presided over by the internationally experienced Claude Jorda - was not content with the evidence and information that Ocampo had disclosed in lieu of his application.
From the rather scarce material the chamber had received, they could not "reasonably" infer Ntaganda's responsibility for the contended crimes and only approved the indictment against the more senior suspect Lubanga.
Ocampo then needed to move fast. He wanted to have a suspect in The Hague but he also knew that an ICC arrest warrant was no assurance for success. He had no police force to execute it himself like he had experienced in the second and more expedient case he had built in Uganda in the meantime.
The five warrants levelled against the leadership of the Lord's Resistance Army (LRA) were already vacant for eight months.
This time however, apprehending Lubanga - in contrast to LRA-leader Joseph Kony - was a realistic opportunity. The former UPC strongman had already been imprisoned in Kinshasa for almost a year and faced possible release under Congolese law. But just in time, Ocampo arranged Lubanga's one-way ticket to Scheveningen prison, with the warm regards from Kabila.
The once-flamboyant rebel leader strolled into the virgin courtroom on a rainy Monday afternoon in March 2006. The ICC-debutant uncomfortably took his place behind his Belgian lawyer, put on his headphones and switched through the channels for court translations.
Judge Jorda then asked the accused to introduce himself. "My name is Thomas Lubanga Dyilo [... ] I am a politician by profession," the tall man replied softly.
Throughout the next six years, he remained a silent spectator. Witnesses came and went and Lubanga attentively observed the trials and errors of his international prosecution. He had hopes of being released.
It was no vain optimism. Just before the trial was finally about to start, two years after his first appearance, in July 2008, the chamber froze the proceedings and ordered Lubanga's immediate release.
The judges were dismayed. Ocampo refused to - and argued he could not - disclose to them and the defence more than 200 documents he had obtained under confidentiality agreements, including from the UN.
But because some of the material was believed to contain exculpatory evidence the chamber believed in these circumstances a fair trial was impossible without them seeing it. Ocampo found a first-aid solution and the appeals chamber, through legal gymnastics, saved the prosecution from total catastrophe and ordered the trial to go forward.
In the meantime, new investigations had been opened in Sudan's Darfur Provinces (2005) and the Central African Republic, respectively on the invitations of the UN Security Council and President Francoise Bozize. And Lubanga had received company.
The alleged leaders of two former UPC enemies had joined him in Scheveningen: the Patriotic Resistance Forces of Ituri (FRPI) and the National Integrated Front (FNI). Germain Katanga was transferred from his Kinshasa prison cell in October 2007 and Matthieu Ngudjolo Chui became the first "real" arrestee in February 2008.
But Kabila's blood rival Jean Pierre Bemba was the most senior Congolese suspect to be detained. He was arrested in Brussels in May 2008.
But despite the fact that Bemba's Movement for the Liberation of Congo (MLC) had also fought in Ituri's bloody war, the former vice-President and senator was charged with atrocities his troops allegedly committed in neighbouring Central African Republic (CAR). Of the four Congolese suspects, Lubanga was the first in the dock.
His trial started in January 2009: "Lubanga's armed group recruited, trained and used hundreds of young children to kill, pillage and rape." Said Ocampo; "They cannot forget what they suffered."
But the OTP narrative was soon shattered, when he called a former child soldier as his first witness. It was a dramatic scene. From his black office chair, a timid boy whispered that he was coached by an NGO.
He then withdrew his statement after 'Papa' Lubanga - a university-trained psychologist - stared at him intensely from the dock. Dubbed 'witness 298', the young man remained nameless.
Two weeks later the judges had put up a curtain in court to block any possible eye contact between Lubanga and the boy. The witness returned, now under the pseudonym 'dieumerci' - 'thank god' in French. A reborn storyteller, he narrated in a clear and chronological way how Lubanga's militia had kidnapped him.
Twenty-seven other witnesses, including 8 more child soldiers and a handful of experts came to The Hague to testify for the prosecution, which rested its case in July 2009.
Only four months later, Ocampo and his deputy Bensouda rushed to Trial Chamber II to present evidence in the trial against Lubanga's former enemies. Katanga and Ngudjolo were tried together, for the alleged mass murder of 200 civilians. Back on 24 January 2002, their shared "plan was to wipe out Bogoro," not only destroying Lubanga's UPC camp "but the whole civilian village," said Ocampo in his opening statement.
"This is the plan and this is the position of the prosecutor's office." But with the uncertain start to Lubanga's trial in mind, the judges vigilantly selected the first witness themselves: the head of the team that had investigated the case since may 2006.
The chamber questioned her about their investigative methodologies: "Could you tell us how you assess the objectivity and credibility of intermediaries?" Presiding Judge Bruno Cotte asked. "I think it is an important question."
It was a query that poured salt in an open wound. In July 2010 before the defence was to litigate Lubanga's case, back in Trial Chamber I, the judges for the second time ordered his release.
Now it was because Ocampo refused to reveal the name of an intermediary between the prosecutor's office and Congolese witnesses.
The Appeals Chamber, again, reversed the release order but rebuked Ocampo for flouting court orders. The trial continued and finally, at its closure in August 2011, Fatou Bensouda insisted that Lubanga's guilt stretched beyond the courts threshold of "beyond any reasonable doubt." It is "beyond any possible doubt," she ensured.
The next day, Defence lawyer Catherine Mabille casted overall doubts over that promise saying the Chamber must have seen this product of organised manipulation of witnesses. She pointed out the vital role intermediaries had played in finding witnesses for the prosecution. "The intermediaries knew what to produce," she said, accusing them of going to Congolese villages to "recruit" children to say that they were child soldiers.
Lubanga heard his judgement on 16 March 2012. But to some extent, it was also levelled against the OTP, against Ocampo who was having his last day in court before handing over to Bensouda.
The British Presiding Judge, Adrian Fulford, while reading his summary, lamented the prosecution's negligence in parts of its investigation: "A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on."
The consequence of that "lack of proper oversight of the intermediaries" he further explained, "is that they were potentially able to take advantage of the witnesses they contacted."
Therefore, the nine 'child soldiers' who had testified for the prosecution were found "unreliable". Lubanga received a very limited conviction, not on the accounts of his alleged victims and neither because he had "meant to" conscript, enlist and use boys and girls in his militia but because, the Chamber said, he "was aware that, in the ordinary course of events, this would occur."
Lubanga has presently almost served two years of the 14-year sentence he is still appealing against. Since then, the OTP has had time to rethink its selection strategy and its investigative methodologies in the African case-files that have been piling up (now also including Kenya, Libya, Cote d'Ivoire and Mali).
Human Rights Watch called upon his office to look into his "unfinished business." But even now, sources in Bunia, however, still report that after Lubanga's 'partner in crime' Bosco Ntaganda handed himself over last year, OTP investigators retreat to old 'best practices'.
Again, intermediaries were looking for witnesses in the field. Are the lessons from the past so hard to learn from? Or was the Ituri investigation poised so badly that the antidote cannot be found.
Back to court.
"Declaring that an accused person is not guilty does not necessarily mean that the Chamber has been convinced of the person's innocence."
A week before Christmas 2012, Judge Cotte elucidated that "such a decision merely shows that the evidence adduced is insufficient to convince the Chamber beyond all reasonable doubt."
His carefully chosen words were the pretext of what many observers on the public gallery were expecting: the acquittal and release of Matthieu Ngudjolo Chui. The prosecution had alleged that 'chief rebel commander'-turned-nurse Ngudjolo - had led an attack that killed around 200 civilians in Bogoro, a village on the shores of Lake Albert some 23 kilometres away from Bunia.
Out of a total of 54, the OTP relied heavily on three "key" witnesses who had themselves been taking part in the attack. The prosecutor ensured they had "testified as best they could and in light of their own personal situations."
But for the Chamber "their remarks were too contradictory or too hazy, too imprecise [... ] to base itself on." Again, ICC judges - although Adrian Fulford was more explicit than Bruno Cotte - levelled an indictment against the quality and credibility of the OTP's evidence.
Ngudjolo now reportedly awaits the decision on the prosecutor's appeal against his release in a Dutch hotel room from where he also requested political asylum in The Netherlands.
His former co-accused Germain Katanga is still in prison, anxiously preparing for his imminent judgement: issued by the same judges and based on the same evidence. But he is less certain about the outcome than Ngudjolo.
The judges, when they separated the two cases, experimented with an extraordinary power they have under the court's rules: the so-called Regulation 55, in legal parlance.
In its final considerations, the bench may change the contours of the jigsaw puzzle, in order to fit in the pieces at hand. In other words, after the trial has finished they allowed themselves to alter the charges according to the evidence.
In Lubanga's case the chamber likewise decided that Ituri was a national conflict in contrast to the OTP's version that it was international, thereby unilaterally dissenting historiography. It goes further in Katanga's case: he may only officially know the exact charges on which he will be found guilty or not guilty at the judgement hearing on Friday.
Have the judges taken over the role of the prosecutor? On the surface, it appears so. Just like they have been actively part of the Bogoro investigation. Why?
The OTP's main body of evidence consists of "witness statements and reports by MONUC investigators or representatives of various NGOs", while investigators had never even travelled to the home-villages of the accused or places where preparations for the very attack allegedly took place.
The first forensic investigation in Bogoro took place in late March 2009, six years after the massacre. But its findings were filed too late and lacked "probative value," the Chamber ruled.
It was against this background that at the end of the trial in January 2012 - when Ngudjolo and Katanga were still believed to have acted together - the entire Trial Chamber travelled to Ituri.
They visited the alleged crime scenes and the accused and some witnesses' home villages. Bruna Cotte, Fatoumata Dembele Diarra and Christine Van Den Wyngaert found it essential to "make their own findings and verify various witness accounts".
Perhaps, this was an even a more critical stance and act than Fulford's slap on the wrist wrapped in almost 160 pages of the Lubanga judgement. But more so, they did not want to judge the case file from an armchair in The Hague. To see is to believe seemed to be the adage.
It is partly from that experience that the majority of the chamber - with Belgian Judge van Den Wyngaert strongly worrying about Katanga's fair trial rights - - might 'recharacterise' the charges versus Katanga. But they were partly also tempted to do so on the account of his own testimony. What had happened?
The OTP's original case-theory and charge is that Katanga - jointly with Ngudjolo - indirectly co-perpetrated - using their militiamen and children - crimes in order to carry out their "common plan" to "wipe out Bogoro."
But in his defence Katanga testified that he simply was the "coordinator" of the attack that his version was solely targeted at UPC military in Bogoro. In this light, applying Regulation 55, the judges can convict him if they find that Katanga indeed contributed to the attack and that he knew that his contribution facilitated crimes.
No matter what the verdict and its narrative; Friday's ruling brings the 'Bogoro dossier' to a close. But it does not put a lid on the Pandora's Box in Congo altogether.
Although he is being tried for crimes in the Central African Republic, Bemba's three-year trial is in a painful limbo. Last November, after his defence had heard its last witness testimonies, the OTP decided to arrest Bemba in his cell but also his lead lawyer, his case manager, a defence witness and a Congolese parliamentarian.
Prosecutors had been tapping their phones and emails to find out that Bemba allegedly ran a "criminal scheme" from his prison in Scheveningen, bribing witnesses to give false statements. With almost the complete defence team in jail as well as their defence strategy tapped by the OTP, the entire trial is in an unprecedented stalemate. A cure has not yet been found.
There was another surprise last year. After chasing Ntaganda since 2004, his case file had become rather dormant. And there he was, out of the blue, knocking on the doors of the US embassy in Rwanda. Quickly - with the smooth assistance of Dutch authorities - he was flown to The Hague. But it was hectic there.
Three Kenyans - President Uhuru Kenyatta, his Deputy William Ruto and former radio host Joshua Sang were putting up strong defences at the court and the OTP was trying to keep its head above water as it was losing its prospected witnesses against the Kenyan threesome.
In that situation, Ntaganda's sudden appearance was perhaps more an inconvenience than a present. Investigators had to go back to Ituri to trace down the old case witnesses and find new ones to support the extra indictment Bensouda had levelled against him in 2012. The question is now if that is enough.
"The notorious commander known as 'The Terminator' is here before you because of his role in pursuing a campaign of violence and terror against civilians and children for more than one year," Bensouda told the chamber early February. Ntaganda was appearing before the court for hearings to decide if there are "reasonable grounds" to send him to trial. It is a legal test to see if there is enough evidence to fit the charges.
The OTP has a complicated theory. According to their narrative Ntaganda, a Rwandan Tutsi, led a campaign to ethnically cleanse Ituri from "non-Hema", killing over 700 people. But Ntaganda's lawyer, Marc Desalliers, of course, painted a different picture claiming his client had even been a peacemaker, instead of a mass killer.
His main argument however, was that Bensouda and her team took "a shotgun approach" in this case, "in the hope that one will hit".
He hinted at the fact that the OTP, one month before the actual hearings, had increased the charges from 10 to 18 and the modes of liability from one to seven. Dessallier, who was also in the team defending Lubanga, embarked on the old strategy of disqualifying the OTP's minimalist investigation and charging practice.
If the judges in the Ntaganda case decide to confirm Bensouda's charges, his trial will be the last to deal with Ituri, closing a troubled chapter. Yet, one Congolese suspect remains at large, somewhere in the Kivu Provinces where the prosecution had also opened investigations.
Supreme commander Sylvstre Mudacumura is wanted for a campaign of violence by his Hutu militia, the Democratic Forces for the Liberiation of Rwanda (FDLR).
These remnants of army soldiers and militiamen that had spearheaded the genocide in Rwanda in 1994, had this time carried out attacks against civilians during an upheaval in the Kivu wars between January 2009 and September 2010.
Fighting the FDLR, Ntaganda was also implicated in atrocities in Kivu since he had left Ituri in 2005, particularly in Laurent Nkunda's CNDP and more recently the M23.
But again, due to the selective prosecution strategy - small yet illustrative and easy to prove crimes - he was not charged for any of those alleged actions. But the reasoning behind that may also be that like in Ituri, conducting investigations in Kivu were considered even more dangerous and problematic.
The Kivu-probe also proved to minimalistic. That fact was painfully illustrated when the ICC had to release Callixte Mbarushimana in 2011. The prosecution did not make it trough the test of the confirmation of charges hearings in the case of the Executive Secretary of the FDLR.
Their case was almost exclusively built on NGO and UN reports, barely on its own investigations on the ground, if any. The chamber issued a damning decision citing "inconsistencies", "lack of independent corroborating evidence" and "assumptions" from third parties.
The Rwandan was set free and returned to Paris. Where the ICC has so far failed to deal with the Kivus, a German court has already been more successful in trying FDLR crimes.
Since May 2011, Mabarushimana's alleged henchmen, Ignace Murwanashyaka and Straton Musoni, have been in the dock in Stuttgart under the principal of universal jurisdiction.
Justice seems be operating elsewhere than in The Hague. Last month in Goma, even the US war crimes diplomat Stephen Rapp reintroduced the idea of a 'specialised' Tribunal for Congo with Congolese and international judges.
These alternatives are the implicit antidote to the poised legacy of the ICC's escapade in Congo. Ituri was the false start of the permanent court that ought to punish and deter mass atrocity.
It seemed attractive but soon headed towards tragedy. This dramatic course has already infected other cases in The Hague, to an extent that warrants alarm. Its most high-level cases are in jeopardy, particularly because of the troubled OTP's investigative and prosecutorial workflow and evidentiary challenges.
As a result, Ivory Coast's former president Laurent Gbagbo has already been waiting for two years in Shceveningen prison for his actual charges to be confirmed. It remains to be seen if he ever goes to trial. Meanwhile, we may see the first trial collapse before it even starts.
Kenyatta may walk free because the prosecutor lost almost half of her witnesses. In his case, the evidence disappears like snow before the sun.
Katanga's judgement will not change that course of events. His possible acquittal, however, will be a sign of hope for what is potentially the last batch of African suspects in The Hague.
Thijs B. Bouwknegt is a Trial Monitor, International Justice & Universal Jurisdiction and Ph.D. Researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam.